Friday, 5 February 2016

Gathering Storm?

Press Release | The Attorney General Must Reconsider MACC’s Investigation Papers on the Transfer of Funds into the Personal Bank Accounts of the Prime Minister

Tuesday, 02 February 2016 09:57pm

The Malaysian Bar is gravely concerned over the Attorney General’s decision of 26 January 2016 on the three investigation papers submitted to him by the Malaysian Anti-Corruption Commission (“MACC”) concerning the transfer of USD681 million (“the purported donation”) and the transfer of funds from SRC International Sdn Bhd (“SRC”), both into the personal bank accounts of the Prime Minister. The Attorney General has declared that he is satisfied that no criminal offence has been committed by the Prime Minister, and instructed MACC to close the three investigation papers.

It was subsequently reported that MACC decided to refer the decision of the Attorney General to two of its statutory oversight panels: the Operations Review Panel and the Special Panel.[1] Both these panels reviewed the decision, and on 28 January 2016 advised MACC to engage with the Attorney General regarding his decision.[2]

The advice of MACC’s oversight panels is not surprising. The decision of the Attorney General to exonerate the Prime Minister of any criminal offence appears to be unsustainable in law. The decision seems premature, lacking in facts, bereft of particulars, and founded on questionable or inadequate reasons.

In respect of the purported donation, it has been reported that MACC’s probe is ongoing. The Attorney General has been asked by MACC to request documents and statements from individuals from several overseas financial institutions[3] under the Mutual Assistance in Criminal Matters Act 2002.[4] This is necessary to ascertain the veracity of the evidence that MACC has already collated in Malaysia. Without this elementary scrutiny of the obtained evidence, the investigation would be incomplete.

However, the Attorney General has refused to make the request, on the basis that he has discovered no criminal offence in relation to the purported donation.[5] This explanation prompts many basic questions that persist and need to be answered, such as: Who specifically made the donation of USD681 million to the Prime Minister between 22 March 2013 and 10 April 2013? What was the purpose of this donation? If the purpose has not been identified, is it proper to conclude that no criminal offence has been committed?

The Attorney General has also said that USD620 million of the purported donation was returned by the Prime Minister to the alleged donor in August 2013. This disclosure, made more than six months after the revelation of the transfer of funds into the Prime Minister’s personal bank accounts, raises more troubling questions: Was Bank Negara Malaysia and/or MACC notified of the repatriation of the USD620 million? What happened to the balance of USD61 million that was not returned to the donor? If the manner in which the USD61 million was utilised by the Prime Minister has not been ascertained, how would the presumption of corrupt practice in Section 50 of the MACC Act 2009 be rebutted?

In relation to the transfer of funds from SRC, the Attorney General has omitted to specify the exact sum of money that was transferred into the Prime Minister’s personal bank accounts. It was previously reported that RM42 million from SRC had been deposited into the Prime Minister’s personal bank accounts.[6] It has now been reported that an additional RM27 million from SRC was deposited into the personal bank accounts of the Prime Minister on 8 July 2014.[7] This would appear to bring the total deposit from SRC to RM69 million. The Attorney General has regrettably not addressed this apparent and glaring discrepancy.

The Attorney General has also not disclosed who gave the approval for the transfer of monies into the Prime Minister’s personal bank accounts, the purpose of the transfer, and how the account numbers of the Prime Minister’s personal bank accounts were obtained.

The Attorney General has stated that there was no evidence that the Prime Minister had any knowledge, or had been informed, of the transfer of monies from SRC into his personal bank accounts. However, an account holder is deemed to know, and cannot claim to be unaware, of transactions concerning his personal bank accounts. Knowledge can be implied or inferred in certain circumstances. In this regard, it has been reported that RM3.2 million was paid from one of these bank accounts to two credit card accounts.[8]

The Attorney General further stated that the evidence shows that the Prime Minister believed that “all payments which were made by him were made from the donation received from the Saudi royal family which was earlier transferred to his personal accounts”.[9] This finding appears implausible, as RM27 million from SRC was reportedly transferred into the Prime Minister’s personal bank accounts on 8 July 2014,[10] which was after the balance of USD620 million of the purported donation had been returned in August 2013.

In the circumstances, the Attorney General’s decision that no criminal offences have been committed in respect of MACC’s investigation papers is hasty and difficult to justify. Indeed, there have been reports that the Attorney General rejected MACC’s recommendations[11] in the investigation papers, that three charges pursuant to Section 403 of the Penal Code (dishonest misappropriation of property) be levelled against the Prime Minister.[12]

Further, the Attorney General’s directive to MACC to close its investigation papers, particularly where the investigation is incomplete, is beyond the Attorney General’s authority. It could be perceived as an act of interference in the investigation. The Attorney General should render all assistance to MACC to facilitate ongoing investigations, or fresh investigations, as and when additional or new evidence is discovered.

The Malaysian Bar also disagrees with statements, attributed to certain quarters, that the discretion of the Attorney General under Article 145(3) of the Federal Constitution to decline to exercise his prosecutorial powers is “absolute” and cannot be questioned in court. The notion of absolute discretionary powers is contrary to the rule of law. All legal powers — even a constitutional power — have legal limits.[13] Thus, the modern and prevailing view is that the Attorney General’s decision not to prosecute is open to challenge in a judicial review action, if the exercise of the prosecutorial discretion is tainted by bad faith, dishonesty or extraneous purposes.[14] The Attorney General’s prosecutorial powers are therefore not unfettered.

The Malaysian Bar therefore urges the Attorney General to reconsider his decision on the transfer of funds into the personal bank accounts of the Prime Minister, and to exercise the prosecutorial powers in Article 145(3) Federal Constitution appropriately.

Former minister Datuk Zaid Ibrahim has filed for leave at the High Court to challenge the decision of the attorney-general (A-G) not to prosecute Prime Minister Datuk Seri Najib Razak over his RM2.6 billion donation and Finance Ministry-owned firm SRC International Sdn Bhd.

He is also seeking leave for a judicial review to challenge A-G Tan Sri Mohamed Apandi Ali's decision in ordering the Malaysian Anti-Corruption Commission (MACC) to close its investigations into both matters.

Zaid said he was arguing that the A-G's decision was unreasonable and constituted an improper exercise of discretion.

He also said Apandi had a constitutional duty to exercise the discretion conferred on him by the provisions of Article 145 (3) of the Federal Constitution with due consideration, reasonably in the public interest and with a sense of justice.

"I have been forced to initiate these proceedings as I am rightfully concerned about the dire consequences to the rule of law in this country if the decision of one man cannot be questioned regardless of the facts and the circumstances of the case.

"As far as I have been advised, there is nothing known in law as the concept of 'absolute discretion'.

"The notion of such unfettered discretion is in fact contrary to the rule of law, and it is for this reason I am compelled to act," Zaid said in a statement today that was posted on his blog.

The Malaysian Insider reported earlier today that a former Umno man would sue Apandi over his failure to prosecute Najib.

Zaid left Umno in 2008 and subsequently joined PKR but has since left the opposition party.

The former law minister said he was satisfied that there was strong evidence for Najib to be held liable for wrongdoing under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 and the Financial Services Act 2013, which might also extend to criminal breach of trust and other offences under the Penal Code.

If Zaid succeeds in getting leave at the Kuala Lumpur High Court, he will then ask the court for an order to set aside the A-G's decision to not prosecute Najib and his order for MACC to close the files on their investigations.

He will also be seeking a court order to compel the A-G to use his discretion under Article 145(3) to properly consider instituting criminal proceedings against the prime minister.

Zaid also wanted a court declaration that the A-G's decision asking MACC to close its investigations was ultra vires (beyond the powers) of the Constitution.

Last Tuesday, Apandi announced that MACC, after six months of investigations, did not have sufficient evidence for him to frame charges against the prime minister and ordered the investigation papers closed.

The three papers are one on the RM2.6 billion donation and two on SRC International, which had taken a RM4 billion loan from the Retirement Fund Inc (KWAP).

Apandi has shrugged off the MACC move to refer its investigation papers to its oversight panel for a review of his decision.

The panel has told MACC to engage the A-G on his findings.

Apandi said any challenge to his decision would go against his powers as A-G stipulated in the Federal Constitution.

But others, including former A-G Tan Sri Abu Talib Othman, had said that these powers do not include directing an investigating agency to stop its probes. – February 2, 2016.